Property buyers in NSW may come across easements, covenants and restrictions when reviewing the title and other documents for a property. These interests can affect how land is accessed, maintained or used, making them an important consideration before committing to a purchase.

Recent changes to NSW property law have altered how some of these interests can be dealt with when land is being developed. The changes commenced on 3 August 2026 as part of reforms introduced by the Conveyancing and Real Property Amendment Act 2025, which received assent on 15 August 2025 and is commencing in phases.

What changed on 3 August 2026?

The reforms amend provisions of the Conveyancing Act 1919 relating to section 88B instruments.

A section 88B instrument can be registered with a plan and used to create certain interests affecting land. The latest reforms expand the range of interests that can also be released through a section 88B instrument as part of the plan registration process. The NSW Registrar General notes that creating and releasing interests when a plan is registered is an efficient and cost-effective way to manage them while land is being developed.

Interests that can now be released this way include easements, profits à prendre such as forestry rights created under section 88AB, public positive covenants created by a prescribed authority under section 88D and positive covenants for maintenance or repair under section 88BA.

Not every restriction can be released this way, though. Only restrictions on the use of land imposed by a prescribed authority under section 88D or 88E are covered, not private restrictions.

Why the laws were changed

The NSW Registrar General says the reforms are intended to simplify the development process. Previously, a local council or other prescribed authority seeking to release certain public positive covenants or restrictions on the use of land generally needed to lodge a separate land dealing. 

Allowing eligible interests to be released through a section 88B instrument, however, enables authorities to deal with them at the same time as their approvals, delivering time and cost savings for landowners and professionals preparing documents for the land register.

Why easements, covenants and restrictions matter to buyers

While the reforms largely concern how interests are managed during development, the interests themselves have practical implications for buyers.

An easement gives another person or entity certain rights over part of the land, commonly for drainage, access or services. Restrictions on the use of land can limit what an owner is permitted to do with the property. Positive covenants impose obligations on the owner. Depending on the covenant, those obligations might include maintaining or repairing particular structures, infrastructure or services. 

These types of registered interests can continue to affect the land when ownership changes, so buyers need to understand any ongoing rights or obligations before settlement. Positive covenants deserve particular attention because some can impose ongoing maintenance, repair or other obligations that may involve continuing costs.

What buyers should check before signing

If you are buying a newly created lot or buying off the plan, check whether there is a registered or proposed section 88B instrument relating to the plan and have it reviewed  before you commit to the purchase. The instrument can identify easements, covenants and restrictions affecting the lot, including interests intended to be created or released when the plan is registered. Bear in mind that a proposed release does not take effect merely because it appears in draft documents – the relevant plan and instrument must be registered.

A property is more than the home or land you see at an inspection – registered interests can affect your rights and obligations long after settlement. A legal review of the title, plan and instrument shows exactly what you are buying.

OutWest Legal offers expert advice on property law and conveyancing. Contact us today to book a consultation and understand the easements, covenants, restrictions or other legal matters that may affect your property purchase.